| [2022] FWC 335 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Stephen Wayne Harrison
v
Ventura Transit Pty Ltd
(U2021/8047)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 25 FEBRUARY 2022 |
Application for an unfair dismissal remedy – bus driver – failure to be vaccinated against COVID-19 or produce medical exemption – Victorian government direction – whether valid reason – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed
[1] On 15 November 2021 Stephen Wayne Harrison (the applicant or Mr Harrison) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed on 26 October 2021 by Ventura Transit Pty Ltd (Ventura or the respondent). At the date of dismissal Mr Harrison was employed as a bus driver.
[2] Mr Harrison claims his dismissal was harsh, unjust or unreasonable. He does not seek reinstatement. He seeks compensation.
[3] Ventura oppose the application. It contends Mr Harrison’s dismissal was not unfair and no issue of remedy arises.
[4] Conciliation was conducted on 20 December 2021. The matter did not resolve.
[5] I issued directions on 6 January 2022.
[6] In advance of the hearing, I received materials from Mr Harrison and Ventura.
[7] I heard the matter by video conference on 16 February 2022.
[8] Both parties were self-represented; Mr Harrison with the assistance of a lay representative Mr Gregory; and Ventura via its Chief Operations Officer (Mr Wood) assisted by Human Resources Manager (Ms Caldow).
[9] Mr Harrison gave oral evidence on four affidavits filed in his name 1 and on sixteen documents accompanying his materials.2
[10] A Senior Operations Supervisor Benjamin Swan gave evidence for Ventura on a statement filed in his name 3 and on seventeen documents accompanying the employer’s materials.4
[11] Some factual disputes emerge from the evidence. In those respects, issues of credit are relevant.
[12] Mr Harrison, whilst attentive and respectful, was vague and inconsistent on detail particularly in relation to whether he received or had seen multiple communications from Ventura about a vaccination mandate and its request to meet between his suspension and dismissal. When pressed, Mr Harrison frequently defaulted to being unable to recall. It was particularly unconvincing that Mr Harrison said, in answer to questions from myself, that the signature on a letter sent to Ventura under his name on 18 October 2021 5 was his signature but then retracted that evidence in cross examination. I treat his evidence with some caution.
[13] Mr Swan gave evidence conscientiously. His recall was generally reliable; on matters within his direct knowledge, it was a proper basis for fact-finding. However, Mr Swan was not the officer who made the decision to dismiss. He had no dealings with Mr Harrison once Mr Harrison had been stood down. Whilst Mr Swan attested to the authenticity of business records, I apply a level of caution to hearsay elements of his evidence.
[14] Ventura did not call Ms Caldow who communicated directly with Mr Harrison in the eleven-day period between his stand down and termination. The failure to call Ms Caldow exposed a gap in Ventura’s evidence, though findings can be made by reference to Mr Harrison’s evidence and inferences properly drawn from the documentary material. That notwithstanding, I take into account the failure to call Ms Caldow in assessing the employer’s oral and written evidence.
[15] I make the following findings.
[16] Ventura is a bus company operating in and around Melbourne and regional Victoria.
[17] Mr Harrison was a relief bus driver. He regularly worked around 42 hours per week, inclusive of ordinary hours and overtime. Until dismissed, he served two years one month. He initially worked from the Mordialloc depot but at the time of dismissal worked from the Pakenham depot.
[18] On 1 October 2021 the Victorian government announced a vaccination mandate with respect to certain employment.
[19] On 7 October 2021, exercising emergency powers under the Public Health and Wellbeing Act 2008 (Vic), the Acting Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions). 6 The Directions required that, unless a valid medical exemption applied, an employer was prohibited from allowing prescribed categories of persons to work outside their private residence unless (in the case of transport workers) the person had received a first dose of the COVID-19 vaccine by 15 October 2021 (or had a booking to do so by 22 October 2021) and had been fully vaccinated by 26 November 2021.7 The Directions exempted persons certified by an approved medical practitioner as having a medical contraindication or acute medical illness.
[20] Ventura determined, and I accept, that the Directions applied to Mr Harrison’s employment. Clause 9(31)(a)(i) provided that a “transport worker” means a person who performs work in connection with a “bus company”.
[21] The Directions have been updated from time to time; however, at all relevant times bus drivers have been required to be vaccinated against COVID-19 to perform work at depots or on buses, unless exempt. The refusal or failure by an employer to comply with the Directions is an offence carrying a significant penalty.
[22] In the month leading to dismissal, a dispute arose between Mr Harrison and Ventura over the COVID-19 vaccination mandate.
[23] On 1 October 2021, by memorandum posted on the staff notice board at the Pakenham depot, Ventura advised employees of the “mandatory vaccination directive”. 8 The notice advised staff of the Victorian government vaccine mandate for “all authorised workers”. It advised employees that to comply they were required to have a first dose by 15 October 2021 “in order to continue working onsite”. It further advised that employees “would need to be fully vaccinated by 26 November 2021”.
[24] A letter dated 4 October 2021 was sent to Mr Harrison. That letter said as follows: 9
“Dear Stephen,
Re: State Government Mandatory Vaccination Direction for Authorised Workers
The Victorian Government announced on Friday mandatory vaccinations for all authorised workers, which includes all Ventura employees.
To comply with the Government mandate:
• All Ventura employees will require their first COVID-19 vaccine dose by Friday 15 October 2021 in order to continue working onsite.
• All Ventura employees will need to be fully vaccinated by 26 November 2021 .
Our records show that you have not provided evidence of having a first or second dose of the COVID-19 vaccination. You must provide evidence of your first and second dose of the COVID- 19 vaccine by the 15th October and 26th November 2021 respectively.
Evidence can be downloaded from your MyGov or Medicare account and needs to be sent to vaccinations@venturabus.com.au
If you need to book in your vaccination, bookings can be made through https://www.coronavirus.vic.qov.au/vaccine
Should you have any concerns, please speak to your Supervisor/Manager, Stacey Warren [phone number] or Kim Caldow [phone number].
Regards
Andrew Cornwall
Managing Director” (emphasis in original)
[25] On 8 and 12 October 2021 Mr Swan, acting on instructions from the Health and Safety Manager and the Human Resources Manager, sent SMS texts to Mr Harrison advising that Mr Swan was “doing an audit of the vaccination status of the Pakenham depot staff” and advising that the employer had no record of vaccination from Mr Harrison and that evidence needed to be submitted by 15 October 2021. 10
[26] A further letter dated 11 October 2021 was sent to Mr Harrison. That letter referred to the letter the previous week, advised that “authorised workers” included “all our employees who are required to work on site” and repeated the requirement to be vaccinated by 15 October 2021 (first dose) and 26 November 2021 (second dose). 11 It concluded:
“We need to stress that if you have not provided the above evidence to us by this Friday 15 October 2021, you will be stood down and unable to work.” (emphasis in original)
[27] A further letter dated 13 October 2021 was sent to Mr Harrison. 12 It noted that he had “advised you are not prepared to obtain the COVID vaccine”, repeated the mandate requirement, expressed the view that Ventura’s position was lawful and reasonable, advised Mr Harrison that he would be stood down under s 524 of the FW Act effective close of business 14 October 2021, and that a meeting would be “arranged with you shortly to address your refusal to abide by this direction”.
[28] On 13 October 2021 Mr Harrison, unsolicited, entered Mr Swan’s office and spoke to Mr Swan about the vaccination issue and his employment. Mr Swan says that Mr Harrison said words to the effect “I might as well clean out my locker then” and “well I am going to be terminated”. Mr Swan says he replied with words to the effect “I’m not terminating anyone. This is a letter with regards to being stood down” and “someone from head office will be in touch with what will happen”. Mr Harrison denies he said words to this effect to Mr Swan. I prefer Mr Swans evidence. 13 I make findings as aforesaid.
[29] Mr Harrison’s final shift concluded the following day 14 October 2021. He was then stood down by letter dated 14 October. 14 It read:
“Dear Stephen
Re Stand Down
Further to our recent correspondence, including our letters to you and notice to all staff, we note you have not provided evidence which satisfies the requirements and timeframes as specified in the State Government COVID-19 Vaccine Mandate.
As you are aware, to comply with the mandate for Authorised Workers, by this Friday 15 October 2021 you were required to provide us either:
Evidence of your first COVID-19 vaccine dose; or
Evidence of a booking to receive your first COVID-19 vaccine dose by Friday 22 October 2021.
We are of the view this is a lawful and reasonable direction from your employer.
Given you have refused to abide by this direction, and have not responded to us with the required evidence, and we have an obligation to comply with the mandate, we therefore are required to stand you down effective close of business today, 14 October 2021.
This letter serves as notice of your stand down pursuant to s524 of the Fair Work Act 2009, and you will not receive payment during the stand down period.
A meeting will be arranged with you shortly to address your refusal to abide by this direction.
Should you have any queries, please speak to your Supervisor/Manager, Stacey Warren [phone number] or Kim Caldow [phone number].
Regards
Andrew Cornwell
Managing Director” (emphasis in original)
[30] Between 15 and 26 October 2021 Mr Harrison was not rostered to work and did not present at the workplace.
[31] By letter dated 18 October 2021 15 Mr Harrison wrote a letter to Ventura which he said was a response to “your correspondence dated 01/10/21”. In this letter Mr Harrison set out his views on the mandate including that the vaccine was experimental, was not safely tested, was produced by companies with a history of criminal conduct, was a breach of human rights and was being imposed as a term of employment to which he had not agreed. He referenced what he claimed to be a decision of the Commission (it was a dissent in a full bench decision).16
[32] By email dated 20 October 2021, a letter dated 20 October 2021 was sent by Ventura to Mr Harrison. It advised that a meeting had been scheduled for 4pm 21 October 2021 (by teleconference) to discuss his position on the vaccination requirement. Mr Harrison was invited to bring a support person.
[33] Mr Harrison did not attend the meeting.
[34] By email (from Ms Caldow) on 21 October 2021 at 9.23pm 17 a further letter dated 21 October 2021 was sent by Ventura to Mr Harrison. It advised that he had failed to attend the scheduled meeting, repeated the vaccination requirement and advised that a rescheduled meeting by teleconference had been scheduled for 1.20pm 26 October 2021. Mr Harrison was again advised that he could bring a support person.
[35] The covering email said:
“Please find important correspondence attached with regards to the Victorian State Government COVID-19 Vaccination mandate.
It is critical you read the attachment and attend the scheduled teleconference.”
[36] The attached letter of 21 October 2021 concluded:
“Please note there will be no further provision to reschedule a meeting. Should you not participate in this meeting and provide your response, we will make a decision on the outcome of your employment based on the information we have available at that time and communicate this decision to you in writing.” (emphasis in original)
[37] Mr Harrison responded by email the following day (11.03am 22 October 2021). He said: 18
“Dear Kim Caldow
You have addressed the letter to my old address!!
I filled out new address details when i transfered to Pakenham branch- they have my new address
This is WHY i did not receive the letter.
Please update all the computer details so this doesnt happen again please.
Please tell me - is this a telephone call meeting OR a zoom meeting ?
New Address is
[street number and name] 19
Warragul Vic 3820
Kind regards
Stephen Harrison” (emphasis in original)
[38] Mr Harrison received an email response from Ms Caldow shortly thereafter (11.20am). She advised: 20
“Hi Steven
Thank you for sending this through. The Connx employee self service is your avenue to update and maintain your own personal details however I am happy to do this on your behalf with the information you have provided below.
Please note that we did not post any letters due to the Australia Post delays.
This is a teleconference. When you dial the phone number you will be then asked for your participant access code as per the below snippet from your letter.
Dial-in number: 08 6245 06 12
Participant access code: 884 245 903#
Many thanks
Kim
Kim Caldow
HR Manager”
[39] Mr Harrison then prepared, with assistance of others, a lengthy letter dated 22 October 2021 addressed to Ventura’s managing director. 21 In that letter he listed eleven categories of information or assurances sought from Ventura. His letter included the following:
“I am replying to your letter written on 21 October 2021 about the tele-conference.
I would like to inform you that I did not receive the initial email for the tele-conference, hence that is why I did not attend. I am asking for an extension to the rescheduled meeting which was to be on Tuesday 26th October 2021 however this day is really unsuitable for me and I am available any day after Friday 29th October 2021 and any day after that.
Before the meeting is arranged please note I am not against the vaccine in any way however,
I write in regard to you, as my employer, the matter of potential COVID-19 vaccine and my desire to be fully informed and appraised of all facts before going ahead.
Please do not take my request for information on the COVID-19 vaccine as a refusal but as a request for further information.
I would be most grateful if you could please provide the following information, in accordance with statutory legal requirements:
(…)
11 .Once I have received the above information in full and I am satisfied that there is no threat to my health, I will be happy to accept your offer to receive the COVID-19 treatment, but with certain conditions-namely that:
a) You confirm in writing that I will suffer no harm.
b) Following acceptance of this, the offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/ or from any interactions by authorized personnel regarding these procedures.
c) In the event that I should have to decline the offer of the vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?
I would also advise that my inalienable rights are reserved.
I would also like to comment that I enjoy my position as a bus driver at Ventura and are still willing to return to work.
I issue this letter via email and I will follow up with a hard copy by mail.
Yours sincerely,
Stephen W Harrison
In own right”
[40] Mr Harrison sent the letter under cover of an email to Ms Caldow at 11.20pm on Friday 22 October 2021.
[41] Ms Caldow responded at 8.53am the following Monday morning (25 October 2021): 22
“Good morning Stephen
Thank you for your email.
Your meeting has been rescheduled for tomorrow at 1.20pm.
It is important to note this is a state government mandate and Ventura have an obligation to comply with this mandate. Regrettably, Ventura have no discretion to take a different position on this matter. Any questions you have about vaccinations should be directed to your General Practitioner/Doctor. as to your own individual circumstances and associated risks associated with receiving the vaccination and/or which vaccination is most suitable, should you make the choice to vaccinate. The choice to vaccination remains yours however Ventura's obligation to comply with the mandate is absolute.
Kind regards
Kim”
[42] Mr Harrison did not attend the rescheduled meeting at 1.20pm 26 October 2021.
[43] Mr Harrison then received a letter of termination dated 26 October 2021 under cover of an email from Ms Caldow sent at 7.15pm 26 October 2021. It read: 23
“Dear Stephen
Re: Confirmation of termination
I refer to my previous letter dated 20 October 2021 which required you to attend a meeting scheduled for 21 October 2021 at 4.00pm. I note that you did not attend this meeting as scheduled and you did not make contact to advise that you would not be attending this meeting.
I further refer to my subsequent letter dated 21 October 2021 which required you to attend a reschedule meeting on 26 October 2021 at 1.20pm. I note that, again you did not attend this meeting as scheduled, and again you did not make contact to advise that you would not be attending this meeting.
As previously communicated this meeting was scheduled to formally discuss your refusal, or failure to follow Ventura's lawful and reasonable direction. The direction was to provide evidence, as required by the State COVID-19 Vaccination Mandate, by Friday 15 October 2021 of either;
• Your first COVID-19 vaccine dose; or
• A booking to receive your first COVID-19 dose by Friday 22nd October 2021.
As you are aware, this direction was a requirement for Ventura to comply with the State COVID-19 Vaccination Mandate for Authorised Workers.
It was further communicated in our letter dated 21 October 2021 that should you not attend the rescheduled meeting and provide your response, we would make a decision on the outcome of your employment based on the information we had available at that time. As we have not received any evidence from you to confirm you have complied with the State Government COVID-19 Vaccination Mandate for Authorised Workers, I write to confirm your employment is terminated effective from today's date, 26 October 2021 .
Regards
Andrew Cornwall
Managing Director”
[44] Mr Harrison’s employment was terminated with immediate effect. He was not paid in lieu of notice.
[45] Two days later (28 October 2021) Mr Harrison responded to the termination by email. He stated: 24
“I would like to reply stating that I did not attend the meeting by tele-conference, as I have already given you several option (sic) to reschedule the dates, to which I did not receive a reply from you.”
[46] Mr Harrison received a reply shortly thereafter (by email) as follows: 25
“Good afternoon Stephen
I respond on behalf of Andrew Cornwall in relation to your email below.
All previous correspondence by you has been responded to. You were provided with at least 2 opportunities to participate in this process and did not do so. We have provided you with ample opportunity to provide your response by facilitating meetings specifically for this purpose.
As a result, and as previously communicated, your employment was terminated effective 26 October 2021.
Kind regards
Kim”
[47] By email dated 29 October 2021 Mr Harrison requested an employment separation certificate. 26 This was subsequently provided.27
[48] Mr Harrison filed unfair dismissal proceedings on 10 November 2021.
[49] Since his dismissal, Mr Harrison has remained unemployed. He has not applied for any jobs. He says he has kept an eye out in the local town (Warragul) and on seek.com.
Mr Harrison
[50] Mr Harrison claims his dismissal was harsh, unjust or unreasonable. He seeks compensation.
[51] He claims the dismissal was unfair on two primary grounds:
• there was no valid reason because the Victorian government direction was unlawful and Ventura’s requirement that he be vaccinated or stood down from 15 October 2021 and its termination was unlawful and contrary to his employment rights; and
• the dismissal was procedurally unfair. He submits that he did not receive some of the letters, emails and text messages that Ventura says it sent about the vaccination requirement and his employment. He claims that is why he did not attend meetings following his stand down. He also submits that two of the emails relied upon by Ventura are falsified.
Ventura
[52] Ventura submit that the dismissal was not harsh, unjust or unreasonable and no issue of remedy arises. It submits:
• there was a valid reason for dismissal having regard to the fact that Mr Harrison remained unvaccinated and had not produced evidence of a medical contraindication. It says that, having regard to the Directions imposing a vaccine mandate, Mr Harrison could not perform an inherent requirement of the job after 15 October 2021, and that its position was lawful and reasonable (given that failure to comply with the Directions would have been an offence by the company); and
• the dismissal was not procedurally unfair because Mr Harrison was provided notice of the vaccination requirement, was given notice of his stand down, was advised of the potential consequence of remaining unvaccinated (stand down and then dismissal), failed to attend two meetings whilst stood down and failed to provide prior notice of his non-attendance.
[53] There are no jurisdictional or preliminary issues arising.
[54] I am satisfied that Mr Harrison was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the required minimum employment period (section 382(a)). His annual rate of earnings did not exceed the high-income threshold (section 382(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the required 21-days after dismissal.
[55] Ventura is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.
[56] I now consider whether Mr Harrison’s dismissal was unfair.
[57] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by Ventura to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of Ventura’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason
[58] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. 28 In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.
[59] The Commission will not stand in the shoes of Ventura and determine what the Commission would have done if it was in Ventura’s position. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
[60] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.29
[61] In this matter, the reason for dismissal advanced by Ventura is that Mr Harrison was unable to work as a bus driver given his failure to comply with the requirement imposed by the Victorian government direction that bus drivers be vaccinated (first dose) by 15 October 2021 (or have a booking by then and do so by 22 October) or produce evidence of a medical contraindication.
[62] The effect of the Directions was that Ventura was prohibited from allowing Mr Harrison to undertake work at the depot or drive its buses from 15 October 2021 unless he had been vaccinated or had a booking by then and do so by 22 October. Mr Harrison decided not to be vaccinated by either date and did not produce a medical exemption. This meant that he was not able to fulfil his role as a bus driver, which could only be performed from the depot and on buses. Nor were there suitable alternative duties reasonably able to be provided.
[63] I also take into consideration that, at the time of dismissal, there was no indication from the Victorian government that the mandate would be of short duration only or in place for other than a reasonable period to meet relevant public health policy objectives.
[64] At the time of dismissal, Mr Harrison had not complied with the requirement in the Directions, either by being vaccinated (first dose) or producing a medical exemption. Nor had Mr Harrison given Ventura any indication of an intent to comply. Indeed, his correspondence of 18 October 2021 was a clear statement of opposition to vaccination and his letter of 22 October 2021 was replete with demands that the employer could not reasonably meet.
[65] In these circumstances, it was not unreasonable for Ventura to conclude that it could not maintain Mr Harrison’s employment given that he had allowed the first dose deadline to pass without being vaccinated and had not produced an exemption.
[66] To have permitted Mr Harrison to drive its buses after 15 October 2021 would have constituted an offence and rendered Ventura liable to a substantial financial penalty.
[67] That Mr Harrison believed the Directions to be unlawful or vaccines against COVID-19 to be unsafe or experimental does not alter this position. There is no evidence before me of unlawfulness. It was a Direction made by a statutory officer under State legislation that the employer was entitled to regard as lawful. If Mr Harrison considers the instrument unlawful, he is entitled to press that view before a court of competent jurisdiction such as the Supreme Court of Victoria. The Commission has no jurisdiction to rule on such matters. Ventura did not have the liberty to pick or choose whether to comply with the Directions. They had been mandated. As observed by a full bench of the Commission in DA v Baptist Care SA: 30
“Unfair dismissal proceedings under Pt 3-2 of the FW Act do not provide an avenue to revisit that policy choice or to assign responsibility for the inevitable consequences of the legislative scheme to employers who are bound by it.”
[68] Ventura had a sound, defensible and well-founded reason to terminate Mr Harrison’s employment. There was a valid reason for dismissal.
[69] This weighs against a finding of unfair dismissal. 31
Notification of reason for dismissal
[70] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment32 and in plain and clear terms.33
[71] The evidence clearly establishes that Mr Harrison was informed of the reason for dismissal at the time of notification of his dismissal. The termination letter expressly provided: 34
“As we have not received any evidence from you to confirm you have complied with the State Government COVID-19 Vaccination Mandate for Authorised Workers, I write to confirm your employment is terminated…”
[72] Indeed, Mr Harrison had prior notice of an imminent “decision on the outcome of your employment based on the information we have available at that time” (Ventura letter 21 October 2021). Earlier letters from Ventura of 4 and 11 October 2021 specifically drew attention to the need to comply with the government mandate “in order to continue working”.
[73] Whilst Mr Harrison disagreed with the reason for dismissal, he was informed in those express terms.
[74] This is a neutral consideration.
Opportunity to respond
[75] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.35
[76] The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.36 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.37
[77] Leaving aside those communications from Ventura which Mr Harrison says he did not receive, the evidence clearly establishes that with respect to those Mr Harrison unquestionably received, he had multiple opportunities to respond to the employer’s advice that the Directions required vaccination or production of a valid exemption by the deadline. Those communications included:
• the memorandum to ‘Ventura Employees’ of 1 October 2021 (Mr Harrison’s letter to Ventura of 18 October 2021 is expressed as a reply to “your correspondence dated 01/10/2021”);
• the stand down letter of 14 October 2021 (Mr Harrison’s evidence in chief says he received this letter 38); and
• the letter of 21 October 2021 concerning Mr Harrison’s non-attendance at the meeting of that date (Mr Harrison’s letter to Ventura of 22 October 2021 is expressed as a reply to “your letter written on 21 October 2021”).
[78] I thus do not need to resolve the disputed question whether Mr Harrison received the texts sent by Mr Swan on 8 and 12 October 2021. Should that have been necessary, having preferred Mr Swan’s evidence, on the balance of probabilities I consider that they were received by Mr Harrison.
[79] Nor do I need to resolve the further disputed question whether Mr Harrison received the letters of 4, 11, 13 and 20 October 2021. Should that have been necessary, on the balance of probabilities I consider that the letter of 13 October 2021 was received that day as such an inference can be drawn from my findings of what Mr Harrison said to Mr Swan when he (Mr Harrison) entered Mr Swan’s office on that day without notice.
[80] Further, should it be necessary, on the balance of probabilities, I also find that the letter of 20 October 2021 was received by Mr Harrison. It was sent to the same email address from which Mr Harrison replied in subsequent days. It was his street address only, and not the email address, that had not been updated.
[81] It follows that I do not accept Mr Harrison’s submission that Ventura emails of 1 October 2021 and 20 October 2021 were fakes. That a different style font is used on an email, or an officer signs off with only their first name (but not surname and title), or the signatory is personally unknown to the recipient does not make an email false.
[82] Consequently, I find (despite Mr Harrison’s denials) that he had advance notice of both the scheduled meeting with Ventura on 21 October 2021 and the rescheduled meeting on 26 October 2021. Both those meetings provided further opportunity for Mr Harrison to explain his position and intention. On both occasions he failed to attend. Mr Harrison had asked Ventura for an extension of the 26 October 2021 meeting but other than saying it was “unsuitable” he failed to state why. His evidence as to why it was unsuitable was vague and unconvincing.
[83] Considered overall, Mr Harrison had multiple opportunities to respond to a procedurally fair process in advance of his dismissal. He did so in the manner he saw fit.
[84] This consideration weighs against a finding of unfairness.
Opportunity for support person
[85] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
[86] No requests were made given that Mr Harrison did not meet on the two occasions scheduled by the employer. On each occasion the employer’s meeting request informed him that he was “welcome to include a support person”.
[87] Ventura did not unreasonably refuse Mr Harrison a support person. This is a neutral consideration.
Warnings concerning performance
[88] This matter does not concern Mr Harrison’s performance or competency as a bus driver. This consideration is not relevant.
Size of enterprise and human resource capability
[89] The employer is not a small business within the meaning of the FW Act.
[90] There is no sense in which the size of the employer or its internal human resources capacity mitigated managing workplace or disciplinary matters in a fair manner.
[91] This is a neutral consideration.
Other matters
[92] There are no other matters arising.
[93] In considering whether Mr Harrison’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.39 Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
[94] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that Ventura and the employee are each treated fairly.40
[95] This fairness principle applies to all matters under Part 3-2 of the FW Act including where an employee is dismissed for being unable to perform an inherent requirement of a job due to the action of a third party (in this case, the Acting Chief Health Officer making the Directions of 7 October 2021). As observed by a full bench of the Commission: 41
“[I]n a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly.”
[96] I have found a valid reason for dismissal given that to have permitted Mr Harrison to drive its buses after 15 October 2021, which was an inherent requirement of his job, would have constituted an offence and rendered Ventura liable to a substantial financial penalty.
[97] I have also found that Mr Harrison had multiple opportunities to respond to a procedurally fair process in advance of being dismissed.
[98] No factors in s 387 of the FW Act weigh in favour of a finding of unfairness; considerations under ss 387 (a) and (c) weigh against such a finding.
[99] Considered overall, Mr Harrison’s dismissal was not unfair.
[100] Having not found the dismissal to be harsh, unjust or unreasonable, no issue of remedy arises.
[101] Mr Harrison’s application is dismissed. An order 42 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
M Gregory, on behalf of, Stephen Wayne Harrison
M Wood and K Caldow, of and on behalf of, Ventura Transit Pty Ltd
Hearing details:
2022
Adelaide (by video conference)
16 February
Printed by authority of the Commonwealth Government Printer
<PR738452>
1 A1 to A4
2 A5 to A20
3 R1
4 R2 to R18
5 A19 page 3
6 reproduced at page 131 Digital Court Book (Mr Harrison’s materials)
7 COVID-19 Mandatory Vaccination (Workers) Directions (7 October 2021) clause 5 and Schedule 1
8 R2 and A11
9 R4
10 R5 and R7
11 R6
12 R8
13 R1 paragraphs 10 to 14
14 R9 and A9
15 A19
16 Kimber v Sapphire Coast Community Aged Care Limited [2021] FWCFB 6015
17 R12
18 R13
19 redacted by the Commission from the published decision
20 R13
21 R14
22 R14
23 R16 and A8
24 R17
25 R17
26 R18
27 A7
28 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]
29 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)
30 [2020] FWCFB 6046 at [31]
31 Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 7498 at 20
32 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]
33 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
34 R16 and A8
35 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]
36 RMIT v Asher (2010) 194 IR 1 at 26-30
37 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
38 A1 paragraph 8
39 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
40 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
41 DA v Baptist Care SA [2020] FWCFB 6046 at [32]